No More Mister Nice Guy…No More “Good-Faith” Relief for ACA Reporting Requirements

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by Becky Achten

The good news is that the deadline to furnish individuals with the Form 1095-C or Form 1095-B reporting health care coverage in 2021 has been extended to March 2, 2022. The bad news is that the days of good-faith relief are over. You better get them right this year!

Contrary to its stance taken in Notice 2020-76, the Internal Revenue Service (IRS) issued proposed regulations to permanently extend the due date for providing the Form 1095-C (applicable to large employers) and the Form 1095-B (generally applicable to insurance carriers) to participants. Employers and insurers can take advantage of the extension for the 2021 reporting season before the regulations become final. This does not, however, change the deadline for filing the forms with the IRS, which remains February 28, 2022 for paper submissions and March 31, 2022 for electronic filings. Read more

Ooh Baby It’s a Wild World…Your Vaccination Status: What Does HIPAA Actually Protect and Prohibit

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by Leslie Thomson

Earlier this fall, the Office for Civil Rights (OCR) issued guidance to help the public understand when a business or employer can request information on an individual’s COVID-19 vaccination status without violating the HIPAA Privacy Rule. This blog addresses the impact of the HIPAA Privacy Rule only. Note there may be other federal or state laws that may apply resulting in a different conclusion.

The HIPAA Privacy Rule does not apply to employment records and generally does not regulate what information can be requested by an employer from employees as part of the terms and conditions of employment that an employer may impose on its workforce. For example, the HIPAA Privacy Rule does not prohibit an employer from requiring or requesting each workforce member to:

  • Provide documentation of their COVID-19 or flu vaccination.
  • Sign a HIPAA authorization for a covered health care provider to disclose the workforce member’s COVID-19 vaccination record to their employer.
  • Wear a mask while in the employer’s facility, on the employer’s property, or in the normal course of performing their duties at another location.

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I Feel Good… I Knew That I Would… Wellness Program Reminders

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by Alex Smith

With employers considering the imposition of health plan premium surcharges on participants who are COVID unvaccinated, a recent court decision highlights the importance of complying with the HIPAA wellness program requirements.

A federal district court in Ohio recently rejected a portion of Macy’s motion to dismiss the Department of Labor’s (DOL’s) enforcement action with respect to the tobacco surcharges on health plan premiums Macy’s imposed as part of its wellness program.  In its enforcement action, the DOL focused on the lack of a reasonable alternative standard for some of the years covered by the enforcement action and the lack of retroactively refunding the surcharge to participants who earned the right to avoid the surcharge later in the plan year for certain years in which a reasonable alternative standard was made available. As background, health contingent wellness programs are required to provide a reasonable alternative standard for earning the incentive (avoiding the surcharge) under HIPAA. Read more

Stronger . . . Services Agreements for Benefit Plans

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By Kevin Selzer

With the exception of certain small businesses, being an employer generally means offering an array of benefits to remain competitive in the worker marketplace.  As the employer grows, typically so does the list of employee benefit plans being offered.  This naturally translates into more service providers, and for good reason.  Employers typically don’t possess the knowledge and skillset to offer these benefits in-house, and ERISA, which applies to most employee benefit arrangements, requires the plans to be administered in accordance with some of the highest standards of care under law. As a result, employers are frequently hiring and replacing service providers.

Today’s post focuses on some tips for employers in a sometimes-overlooked aspect of the process of hiring a service provider – the contract between the employer and the provider.  In concept, the service provider agreement is relatively simple – it needs to set out each party’s role and responsibility in delivering the employee benefit.  As always though, the devil is in the details.  Below are some tips for employers:

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This is the End: Employers Must Provide Notice of the Expiring COBRA Subsidy Period

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by Brenda Berg

The COBRA subsidy from COVID-19 stimulus bill – The American Rescue Plan Act of 2021 (ARPA) – is nearing an end and in many cases requires employers to provide notices by September 15. The COBRA subsidy covered 100% of COBRA premiums for assistance-eligible individuals for periods of coverage beginning on or after April 1, 2021 through September 30, 2021. We previously covered the details of the subsidy in these posts: These Boots Are Made For Walking…But If You Quit, You Might Not Get the COBRA Subsidy and Lean on Me…New Guidance on Federal COBRA Subsidy. Because eligible individuals have 60 days to elect COBRA, there are still a couple months of coverage periods for which individuals may still be able to elect the subsidy. Read more

Delta Dawn, What’s that Surcharge You’re Adding On? Employers Consider Raising Premiums for Unvaccinated Workers

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by Beth Nedrow

Employers are impacted in many ways by the COVID-19 pandemic, not the least of which are employee health and safety. For the last several months, employers have used mostly soft-sell approaches to encourage their employees to get vaccinated. With the FDA’s approval, employers are showing a willingness to move beyond incentives like gift cards. One of the more notable examples in the headlines lately is Delta Airlines’ decision to implement a premium surcharge on unvaccinated workers. Employees who don’t get the jab will have to pay more in premiums under the Airlines’ medical plan. Read more

Let’s Get Physical – Proposed PHIT Act Would Make Certain Sports and Fitness Expenses Tax Deductible

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by Alex Smith

Earlier this year, the Personal Health Investment Today Act of 2021 (the PHIT Act) was introduced in the U.S. Senate, where the legislation remains currently pending. If enacted, the PHIT Act would amend the Internal Revenue Code of 1986 to include “qualified sports and fitness expenses” among the expenses that may be deducted as tax-deductible medical expenses. In addition, individuals would be able to pay for “qualified sports and fitness expenses” using pre-tax dollars through their health savings account (HSA) or health care flexible spending account (Health FSA). Read more

Here Comes the Sun: The DOL Intends to Shine the Light on Mental Health Parity

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by Bret F. Busacker

We previously blogged about the new Mental Health Parity and Addiction Equity Act (MHPAEA) reporting and disclosure requirements established by the Consolidated Appropriation Act, 2021 (CAA).

As a refresher, employers and carriers that sponsor group health plans are now required to provide upon request a full analysis of the process followed by the plan in establishing non-quantitative treatment limitations (NQTLs) for the plan and the impact these NQTL’s have on mental health and substance use disorder (MH/SUD) benefits provided by the plan.  This disclosure requirement went into effect on February 10, 2021.

The DOL has recently signaled its intent to focus on MHPAEA issues in filing suit against United Healthcare Insurance Company (“UHIC”) and United Behavioral Health (“UBH”).   Read more

I Can’t Go For That, No Balance Billing

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by Leslie Thomson

The Consolidated Appropriations Act of 2021 (“CAA”) established, among other things, new protections from surprise billing and excessive cost-sharing for consumers receiving health care items and services (“No Surprises Act”).

Most group health plans and health insurance issuers that offer group or individual health insurance coverage have a network of providers and health care facilities that agree to accept a specific payment amount for their services. Providers and facilities that are not part of a plan’s or issuer’s network usually charge higher amounts than the in-network providers and facilities. Group health plans and issuers typically do not cover the entire out-of-network costs, leaving the individual with higher costs than if they had been seen by an in-network provider. In many cases, the out-of-network provider may bill the individual for the difference between the billed charge and the amount paid by their plan or insurance, unless prohibited by state law (known as “balance billing”). Read more

Here We Go Again, PCORI’s Back in Town

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By Benjamin Gibbons

For those employers that sponsor a self-insured health plan, it’s important to be aware that the deadline for your 2021 PCORI filing is August 2, 2021. This deadline applies for plan years ending on December 31, 2020 (or any others between October 1, 2020 and October 1, 2021).  If you haven’t yet made your PCORI filing on IRS Form 720, we recommend doing so as soon as possible. Read more